In 1972 comedian George Carlin unveiled a profane comedy routine in which he uttered seven profanities prohibited on the public airwaves by the Federal Communications Commission. His “Seven Things You Can’t Say on Television” is often revered by self-styled civil libertarians on the left – even though the FCC regulations he was criticizing were upheld in FCC v. Pacifica Foundation in 1978. Yet Carlin’s performance is iconic for some because of his stance against “the man.”

Today’s “man” isn’t the FCC, it’s the tax-funded university’s “Diversity officer” or even its Dean of student affairs. But sadly the state of free speech on campus is no laughing matter, and the ACLU and its allies seem to have little to say about the egregious situation for free speech on campus. Public universities across the country routinely employ “harassment,” “bias incident,” and even computer use policies that prohibit not just a few choice words but entire subjects of legitimate conversation simply because someone – including eavesdroppers – might take offense or even find the conversation “annoying.” These policies, often collectively referred to as “speech codes,” stifle free speech either by their enforcement or by simply threatening to subject students to punishment if a listener reports them (as they are usually encouraged to do). The United States Court of Appeals for the Third Circuit has twice dealt with speech codes on high school and university campuses in recent years. Most recently ADF scored a significant victory for student speech rights in DeJohn v. Temple University, 537 F.3d 301 (3rd Cir. 2008) where the Third Circuit held that the school’s sexual harassment policy was overbroad and could be used to punish core protected speech.
With two years distance from the DeJohn decision, however, public universities across New Jersey, Delaware, and Pennsylvania continue to hold on to egregiously unconstitutional speech codes that use much of the same language rejected in Saxe and DeJohn and inhibit expression and skew debate on campus by placing students at risk of substantial punishment if someone claims offense at what they say.

At Rutgers University, students are encouraged to report “bias incidents” by fellow students, including any “verbal, written … or psychological” act that “maligns” a person on the basis of a number of bases including religion, sexual orientation, and others. Such acts warrant “intervention” where they lose a student to “lose confidence in their ability to participate in the educational mission of the university.” So a conversation or an email about religious differences that the listener or recipient thinks “maligns” their religion warrants punishment. And if all that weren’t enough, the department responsible for deciding whether a student’s email or conversation is a punishable “bias incident” is the “Center for Social Justice Education and LGBT Communities.” The exact role of any kangaroos in the proceedings is unclear.

Similarly, at Cheyney University in Pennsylvania students can be punished for “spoken words” or any “production, display or circulation of written words, pictures or other materials” that offend a person on the basis of a number of bases from gender or “religious belief.” So a student circulating an image of Mohammed that is viewed by a Muslim student or stating their belief that faith in Christ is the only means of salvation is potentially subject to punishment if someone is offended by their speech. Delaware State University prohibits “offensive utterances” and Indiana University of Pennsylvania and Westmoreland County Community College in Pennsylvania prohibit certain speech that the school believes would create an “offensive … environment.”

And it’s not just these 5 schools that are receiving letters today that are the problem. Research by ADF allied attorneys shows a host of schools in the Third Circuit that retain egregiously unconstitutional speech codes despite clear precedent in the Third Circuit. For instance, Lincoln University in Pennsylvania prohibits students from engaging in “disrespectful, absurd and rude” behavior. I believe this is the first policy I’ve ever seen that violates itself. Isn’t engaging in “absurd” behavior a substantial part of university life? On the college campus it’s not just seven profane words that are prohibited, but a whole host of ideas and topics of conversation that are verboten.

Is this any way to run a marketplace of ideas? There is no more excuse for universities in these states to claim that they were unaware of the law. It is clearly established, they are in clear violation, and it is time for them to respect the rights of their students and the authority of binding federal courts. That’s why we are today launching an initiative to urge schools in the Third Circuit to eliminate their unconstitutional speech codes. The five schools mentioned above will receive today a letter pointing out the serious flaws in the university’s speech codes and offering to assist the universities in bringing their policies into compliance with the First Amendment. It is our sincere hope that each school will choose to revise its policies voluntarily and ensure that its students’ rights are protected. But if they do not, we stand ready to take the next step and protect these students’ rights in federal court. And if you’re a student who would also like to address the unconstitutional speech codes on your campus, please let us know. This is the beginning of this effort, not the end. Stay tuned.

Watch a Podcast of Alliance Defense Fund attorney Kevin Theriot and KU Law Professor Richard Levy discuss Christian Legal Society v. Martinez, a case that the U.S. Supreme Court will hear in a few weeks.

One of the downsides of defending First Amendment rights on campus for a living is that you begin to think of universities as the sum of their speech code parts. Rather than fight this tendency, I decided to try picking an NCAA tourney bracket based on how the games should come out if it was based on the schools’ commitment to the First Amendment rights of students. The Secretary of Education has suggested banning teams with low graduation rates from the tournament. Perhaps banning those with a red light rating from FIRE might also be considered. (O.K., both are bad ideas, but bear with me).

The first two rounds have seen mixed results from a First Amendment perspective. For instance, Murray State, President Obama’s upset special that did knock off Vandy in its first round game before succumbing to Butler, had the “speech code of the month” (not a good thing) for March. And Cal. Berkeley–the flagship of a UC system that has decided that it will simply ban expressive association on campus–beat Louisville in the first round but is now at home after being dispatched by Duke. Perhaps if the Cal. men’s basketball team hadn’t been required to give playing time to people who oppose basketball it might have fared better. That’s what an open membership policy will do for you.

A dilemma with making these picks is that most universities have a bad First Amendment track record. So one must choose between schools that, from a First Amendment perspective, should be on the CBI bubble. There is also the problem of private v. public universities. How does one compare the environment for speech on campus at a Christian private university and a public state school? I developed a few guideposts:

FIRE’s red/yellow/green light rating is an important factor.

Prior and current First Amendment violations by a campus are negatives that can cause a school to lose to a school that only has bad policies on paper. Practice trumps policy.

A university will not be excused for its past violations just because the policies have now been changed as a result of litigation.

Private universities get some leeway, but not a complete pass. Otherwise the exercise becomes pointless as Baylor and St. Mary’s battle to a scoreless tie.

Duke must lose.

I retain the authority to apply additional criteria as I choose and to apply the above criteria in any manner I wish. One might say my discretion is unbridled. Especially insofar as is necessary to give effect to rule 5.

The Picks:

MIDWEST

Northern Iowa v. Michigan State

Michigan State was recently on FIRE’s red alert list of schools with some of the worst speech codes in the country after it applied a spamming policy to prohibit a student from emailing professors to protest a university decision. However, without litigation it has since amended its codes making Michigan State a yellow light school in FIRE’s ratings.

In the end, while it is a close call between these two non-paragons of freedom, Michigan State beats Northern Iowa on the strength of a late three-pointer by Dean Joan Howarth of the Michigan State Law School, an ACLU member and GLBT advocate who wrote a law review article defending CLS’s position in CLS v. Martinez. Such intellectual honesty is refreshing and commendable.

Pick–Michigan State

Tennessee v. Ohio State

This one is relatively easy. Ohio State has a red light from FIRE. Tennessee is green! This places it in rarified air among universities, only about 2% of which achieve this rating. And THE OSU’s history is even worse. In 2003, OSU derecognized its CLS chapter when they group refused to sacrifice its Statement of Faith for voting members and officers. While OSU eventually amended its policies to protect the First Amendment rights of religious student groups it did so only in response to a lawsuit by CLS and ADF. So as much as it pains this Bama fan…

Pick–Tennessee

WEST

Syracuse v. Butler

This is a matchup of two private schools. While private, Syracuse says that it is open to the free exchange of ideas on campus. Yet, despite its promises, the school has a red light rating because its policies don’t match its rhetoric.

Kansas State has a red light rating from FIRE, largely on the strength of its policy prohibiting “rude or challenging behavior” by those with a “formal association” to the school (undefined). In truth, this is a statewide policy that would appear to apply at Kansas University as well–perhaps explaining the loss to Northern Iowa. Had they challenged Ali Farokhmanesh’s three-pointer late in the game they might still be dancing. Kansas State also removed the advisor of a campus newspaper after a “content analysis” determined that the paper was not sufficiently covering issues related to “diversity.”

This is a matchup of FIRE red light schools: Washington and West Virginia. Washington denied student teaching credit for a student who wanted to teach at a Catholic school claiming that the state’s Blaine Amendment forbade it from aiding religion in this way. UW only backed down after an ADF lawsuit. And West Virginia only abandoned its extraordinarily restrictive speech zone policy (limiting expression to two areas on campus) after a Rutherford Institute lawsuit. But in this close matchup, it comes down to bench play. The West Virginia Attorney General, the father of the President of the Hastings Democrats, joined an amicus brief supporting association rights on campus in CLS v. Martinez. (See p.2 n.1).

This is a matchup of two private Christian schools. Thus, neither have FIRE ratings. In this situation, I’m going to fall back on otherwise irrelevant factors like basketball. St. Mary’s is the Omar Samhan show. And they’ve finally met their match in a big Baylor squad that can neutralize him.

Pick–Baylor.

THE FINAL FOUR

Tennessee (with its green light!) takes out Michigan State.

Xavier knocks off Syracuse.

Kentucky over West Virginia.

Baylor slips by Purdue.

The National Championship game is Tennessee v. Baylor. It’s a close matchup, but in the end one of Baylor’s greatest strengths, it’s new President, and friend of the First Amendment, Ken Starr, trips it up as his much too pro-school authority position in Morse v. Frederick allows Tennessee to eek out a win and the national championship.

A federal judge ruled Monday that nationally syndicated opinion columns written by a criminology professor at the University of North Carolina-Wilmington are not protected by the First Amendment because he referred to them on a promotion application.

ADF attorneys argue that the university refused to promote Dr. Mike Adams to full professor because of his religious beliefs and political viewpoints, as espoused through his columns. They are considering their options for appealing the decision.

“Christian professors should not be discriminated against because of their beliefs. No university should refuse promotion to an accomplished professor simply because it disagrees with his religious and political views,” said ADF Senior Counsel Jordan Lorence. “We disagree with the court’s assessment that Dr. Adams’ speech is somehow not protected by the Constitution. Opinion columns are classic examples of free speech protected by the First Amendment, and mentioning them on a promotion application does not change this fact.”

Adams frequently received accolades from his colleagues after the university hired him as an assistant professor in 1993 and promoted him to associate professor in 1998 when he was an atheist. However, intrusive investigations, baseless accusations, and the denial of promotion to full professor followed his conversion to Christianity in 2000, even though his scholarly output surpassed that of almost all of his colleagues.

ADF attorneys representing Adams sued UNCW in April 2007, arguing that he was harassed and denied a promotion because his Christian beliefs did not coincide with the political and philosophical stance of his superiors. The court denied the university’s motion to dismiss the lawsuit in 2008.

The summary judgment order in the case Adams v. The Trustees of the University of North Carolina-Wilmington was issued by the U.S. District Court for the Eastern District of North Carolina, Southern Division.

On Tuesday, Dave Imbriaco, a Rutgers student majoring in history, published an op-ed in the Rutgers student newspaper challenging the notion that Christian students are being discriminated against at public university across the country. I’m glad he wrote the piece because it allows us to look back on a snapshot of Rutgers’ history and clarify the well-established law that so many students, faculty and administrators are mistaken about.

In 2002, Rutgers banned the InterVarsity Multi-Ethnic Christian Fellowship from campus because it required leaders to “adhere to biblical standards and belief in all areas of their lives.” Imagine that, the group actually had the gall to try to preserve its biblical mission by requiring Christian leaders. InterVarsity eventually had to sue in federal district court to regain its status on campus, which forced Rutgers’ hand and resulted in a settlement restoring InterVarsity to campus. Was this incident isolated? No. In fact, this April the Supreme Court will hear argument in Christian Legal Society v. Martinez, a case similar to InterVarsity’s that grew out of a similar ban at the University of California Hastings College of the Law.

Mr. Imbriaco’s op-ed asserts that he “cannot also help but notice the incredibly painful irony in the claim that Christian students are somehow being ‘oppressed’ in any way.” I think InterVarsity would disagree. Throwing a group off campus because of its faith-based leadership requirements sounds oppressive to me. To be sure, the same thing didn’t happen to the College Republicans and College Democrats at Rutgers, nor did it happen to other religious groups.

In response to the growing threat of indoctrination by campus administrators and faculty, Mr. Imbriaco claims that indoctrination is nothing more than “a free-flowing exchange of ideas where people that [sic] are better at describing one’s world take precedence over those that are not. Good ideas stay in the mix and are improved upon, and bad ideas are weeded out and discarded.” I think Julea Ward and Emily Brooker would disagree, as would the students at the University of Delaware. All of them were told to change their beliefs and ideas in order to conform to campus orthodoxy. In Ms. Ward’s case, the university expelled her for not changing her beliefs on the issue of homosexual behavior. Ward wasn’t allowed to have her ideas heard, let alone considered. Mandating change in personal beliefs is not “a free-flowing exchange of ideas,” it is indoctrination, and it is unconstitutional. As the Supreme Court said in West Virginia State Board of Education v. Barnette: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

With respect to censorship of Christians on campus, Mr. Imbriaco writes that this is merely “rejection of a system of describing the universe that no longer explains what it claims to explain. In other words, it’s not that we’re actively censoring Christian perspectives on campus. Rather, we’ve decided that these perspectives are outdated, irrelevant or just plain silly in this modern age.” Wait, I thought Mr. Imbriaco wanted a “free-flowing exchange of ideas?” Obviously not. Mr. Imbriaco’s logic follows those of campus speech codes, which have been uniformly struck down by every court that has considered them. Universities should encourage debate and discussion of ideas, not prohibit them from the start as Imbriaco contends. Yet, according to a study by the Center for Survey Research and Analysis at the University of Connecticut, fifty-five percent of students said religious individuals should be careful “not to offend people while spreading their beliefs.” Every great idea in history started out as being “silly” or unorthodox in some way. But if universities functioned the way Mr. Imbriaco believes they should, those ideas would have never emerged because those in the majority would have been able to stifle them. That is not a reflection of the historical “marketplace of ideas” that colleges and universities are supposed to be. Ideas come and go in a free society, but it is not the government’s place to decide which are allowed and which are not.

Mr. Imbriaco then postulates that even if discrimination against Christians does occur, the “law states that institutions that receive government funding must not participate in any kind of religious indoctrination or create an environment that favors one religious group over another.” That’s about as accurate as saying the sky is red. Actually, Rutgers, like all public colleges and universities, must provide equal access to all students when it comes to freedom of expression, student fee funding, student group association, etc., and the Supreme Court has held that for many years. Treating Christians the same as other students upholds the Constitution, it doesn’t violate it. Moreover, Imbriaco’s argument is ignorant of the historical context of the Establishment Clause, which was to ensure that the government was neutral with respect to denominations, not empower the government to act with hostility toward religion, or any other beliefs it does not approve. As the Court said in Lynch v. Donnelly, “[n]or does the Constitution require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.” Similarly, in Larson v. Valente, the high Court said that the “clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Thus, in the case of InterVarsity, allowing it to exist on campus just like all other student groups was consistent with the Establishment Clause, and the First Amendment’s other guarantees.

Given that the UConn study found that one in four college students cannot name any of the freedoms protected by the First Amendment, it is not surprising that Mr. Imbriaco’s assertions are inaccurate. But the problem in his op-ed is that it fails to articulate any facts justifying his positions. The ADF Center for Academic Freedom has plenty of facts showing that Christians are indeed treated like second class citizens on campus. I hope Mr. Imbriaco visits our website and learns more about the history of discrimination against Christians on campus.

In the comments to another post on this blog, there was some debate about whether Christians are actually discriminated against in the academy, or if they merely fail to succeed academically because they are not very good scholars, they do not understand the assigned material, or their arguments simply are not very good.

That is a possibility. It would, however, seem odd that the same faith that inspired the establishment of countless major private universities in this nation now cannot produce believers smart enough or disciplined enough to succeed in the universities established by their faithful antecedents. Even so, Christians and others must be careful not to seek some sort of religious affirmative action to excuse scholarly mediocrity from criticism.

Nevertheless, there remains an issue to address: will the plausibility structures of the gatekeepers of academia permit the arguments of true-believing religious students and professors to receive a fair hearing? Will they even consider the arguments that tend to prove truths consistent with Judeo-Christian values but not with the secularist academy? J.P. Moreland touched on this point in his article, Academic Integration and the Christian Scholar:

A person will never be able to change his/her life if he/she cannot even entertain the beliefs needed to bring about that change. By “entertain a belief” I mean to consider the possibility that the belief might be true. . . .

A person’s plausibility structure is the set of ideas the person either is or is not willing to entertain as possibly true. For example, no one would come to a lecture defending a flat earth because this idea is just not part of our plausibility structure. We cannot even entertain the idea. Moreover, a person’s plausibility structure is largely (though not exclusively) a function of the beliefs he or she already has. Applied to accepting or maintaining Christian belief, J. Gresham Machen got it right when he said:

“[G]od usually exerts that power in connection with certain prior conditions of the human mind, and it should be ours to create, so far as we can, with the help of God, those favorable conditions for the reception of the gospel. False ideas are the greatest obstacles to the reception of the gospel. We may preach with all the fervor of a reformer and yet succeed only in winning a straggler here and there, if we permit the whole collective thought of the nation or of the world to be controlled by ideas which, by the resistless force of logic, prevent Christianity from being regarded as anything more than a harmless delusion.”

If a culture reaches the point where Christian claims are not even part of its plausibility structure, fewer and fewer people will be able to entertain the possibility that they might be true. Whatever stragglers do come to faith in such a context would do so on the basis of felt needs alone and the genuineness of such conversions would be questionable to say the least. And believers will not make much progress in the spiritual life because they will not have the depth of conviction or the integrated noetic [knowledge] structure necessary for such progress. This is why integration is so crucial to spirituality. It can create a plausibility structure in a person’s mind . . . so Christian ideas can be entertained by that person.

For the critics that have been commenting on this blog, the relevant question is not whether Christian scholars on the whole have the goods to succeed in academia. The relevant question is whether they could succeed even if they do. If the plausibility structures of the overwhelming majority of academics will not even tolerate the suggestion that Christianity is true, or that common secular beliefs are insufficient to explain reality, Christians will always be excluded by such narrow-minded academics no matter how valid or truthful their arguments are. And if that is the case, the academy is not worldview-neutral, but anti-faith.

Thus, while Christian scholars should not shy away from the opportunity to integrate their faith and their field, and they are responsible for their choice to do so, the narrow plausibility structures of academic gate-keepers cannot be held blameless of hindering the pursuit of knowledge. It is certainly no coincidence that in many top-ranked law schools in 2005, over 90% of the professors donating to political campaigns “just so happened” to donate to Democrats. Political position is not the equivalent of religious belief, but it goes to show that academic institutions prefer to hire their own kind.

The fact that university professors are so out of step with the public is plainly the result of institutional bias and narrow plausibility structures. Academics are more impressed with their own than with those who disagree, and they naturally favor other professors who “fit in” when reviewing and hiring graduate students and more junior professors. If a religious student is hoping to break into those major institutions, it requires a great deal of fortitude for him or her to tell the decision-makers that their theories and publications are wrong. It will obviously be easier to get in by adopting their worldview, telling them how wonderful their work is, and explaining how one hopes to use that work to springboard to new areas.

Where public universities are concerned, our government school administrations ought to have very broad plausibility structures, not narrow ones. That is not to say that individual professors should not be able to teach consistently with their worldviews. They should. But when it comes to allowing other graduate students and professors into the field, narrow plausibility structures have no place. There is no reason to shut the door on scholars with new (or ancient) ideas. One way to broaden the plausibility structures is to strictly guard against worldview discrimination in grading, not to mention the censorhip of campus speech. Professors generally ought to grade students based on whether their conclusions follow from their premises, not whether the argument fits the status quo.

In the face of growing proof that college students drift left politically and abandon their faith during their college years, the defenders of academia often put forward a series of hollow excuses. Cloaked in various guises, these excuses often boil down to variations on three themes.

1. College student move left because all smart people are leftists.

While some may find it comforting to think that all conservatives (or all Christians) are either evil or stupid, this notion is hardly reasonable. It overlooks the host of serious, respected Christian and conservative scholars, people like Walter Williams, Thomas Sowell, Paul Johnson, Francis Collins, Ravi Zacharias, and C.S. Lewis. And even the ISI study shows that as students understand America’s institutions better, their respect for our heritage and ideals increases.

2. Christians have no right to complain about university indoctrination because they do the same thing.

This argument ignores the vast chasm that separates private citizens advancing their values from government imposing its values on those citizens. Within the church, individual citizens try to pass along their values to their children and other citizens (just like secular individuals and organizations), and they do it in the context of an increasingly hostile culture. But at public universities, government officials (i.e., professors and administrators) impose their preferred values on citizens, and as they silence all dissenting voices, they do so in an increasingly uniform monoculture on campus.

Thankfully, the Constitution does not ignore this chasm between private persuasion and government indoctrination. It explicitly protects Christians’ freedom to hold, practice, and express their religious views, and even their freedom to persuade others to share their convictions. But, to quote the Supreme Court’s landmark 1943 holding, the Constitution expressly prohibits the government from “prescrib[ing] what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

3. College students move left as they hear leftist ideas for the first time after leaving home.

So universities are neither dispassionately presenting “just the facts” nor allowing differing perspective to compete in an unfettered “marketplace of ideas.” Instead, they are putting a thumb on the scale by promoting their preferred viewpoints and silencing all others. Hence, the shift in student opinions merely reflects the campus environment, not the merits of leftist ideology.

According to the Supreme Court’s 1967 Keyishian decision, the purpose of higher education is to train the next generation of America’s leaders through the “robust exchange of ideas.” But today, the ideological monopoly on campus produces college students that fail basic American civics but regurgitate university- and faculty-endorsed values. Sadly, higher education is more concerned with teaching people what to think, not how to think.

On this blog, our website, and elsewhere, we have written frequently of the ideological atmosphere on campus, one that is far removed from the “marketplace of ideas” ideal. From professors who dislike Evangelical Christians, to professors who try to indoctrinate students, to an incredibly hedonistic and increasingly leftist culture, the campus atmosphere is particularly noxious to Christian and conservative ideas. Nevertheless, the skeptics continue to doubt.

American colleges generally fail to significantly increase civic knowledge among their students, but they do influence student opinion on a narrow set of polarizing social issues.

When quizzed on basic civics, college graduates only answered four more questions correctly than high school graduates. But a college education does make a person more likely to favor same-sex “marriage,” more likely to support abortion on demand, less likely to believe that people can succeed through hard work, less likely to favor school prayer, and less likely to believe the Bible is God’s Word.

And this shift does not just occur among students. If a person has taught at the college level, he is more likely to think that America corrupts otherwise good people, that the Ten Commandments are irrelevant today, and that homeschooling is bad than someone who has not.

In short, on far too many campuses today, education is out, and indoctrination is in. In an environment that fosters a leftward creep among students and faculty, it is vitally important that Christian students and professors remain free to advocate their viewpoints openly and willing to do so boldly.